Respective constitutional provisions by itself entitles higher degree of human rights to J&K citizens than POK
At the outset I have been always arguing that given the respective constitutional provisions of both countries, Pakistan has much less moral righteousness than India to comment on the human rights situation in Kashmir.
At the outset, a comparison of the respective provisions of the constitution is salient to any commentary on human rights issues in Kashmir. It has to be appreciated that while Article 370 is a very inclusive provision where as in respect of Pakistan, even any views expressed or endeavour questioning their part of Kashmir's accession to Pakistan is outlawed. I think the author of the human rights report could have dwelled on this reference to the 'Azad Kashmir constitution', although there is a passing reference to this in his report along with the provisions of Article 370 while seeking to write a report on human rights violations in both parts of Kashmir.
Contents of the report (executive summary)
Notwithstanding the same I am basically trying to examine the contents of the report. I am quoting an extract of the opening lines of the executive summary of the report:
On 8 July 2016, Burhan Wani, the 22-year old leader of the Hizbul Mujahidin, an armed group, was killed by Indian security forces during an armed clash in Bumdoora village in Kokernag area in the Indian state of Jammu and Kashmir. This triggered protests against his killing on a very large and unprecedented scale throughout the Kashmir Valley and in districts of Jammu. Indian security forces responded to protests with force, which led to casualties and a wide range of alleged related human rights violations throughout the summer of 2016 and into 2018. While Indian-Administered Kashmir has experienced waves of protests in the past-in the late 1980s to early 1990s, 2008 and 2010-this current round of protests appears to involve more people than the past, and the profile of protesters has also shifted to include more young, middle-class Kashmiris, including females who do not appear to have been participating in the past. Some of the root causes of the discontent fuelling protesters are addressed in this report.
Shortly after the outbreak of violence, the High Commissioner for Human Rights met with the representatives of the Governments of Pakistan and India who had differing narratives about the on-going events and the general situation in Kashmir. From July 2016, the High Commissioner has on numerous occasions requested the Governments of India and Pakistan that his Office be given unconditional access to Kashmir to assess the human rights situation. India rejected this request, while Pakistan offered access should the Office obtain access to Indian-Administered Kashmir. Without unconditional access to Kashmir on either side of the Line of Control, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has undertaken remote monitoring of the human rights situation. This first report on the situation of human rights in both Indian-Administered Kashmir and Pakistan-Administered Kashmir is based on such monitoring.
Faulty preamble to report
The opening line itself is faulty. Indian security forces are not the trigger happy murderers as it has been portrayed. The report does not build the narrative as to what was the reason for exchange of fire between the Hizbul Mujahideen and security forces, and how Burhan Wani was killed in a crossfire. No mention of is made in the entire report of the author about the number of the security personnel killed, injured etc. in the crossfires with militant groups,
Reliance on civil societies sources
Para 6 of the executive summary in fact states that civil societies have accused members of armed groups of numerous attacks against civilians, off-duty police and army personnel on leave, including the killing of 16-20 civilians between January and April 2018. The sources have not been quoted.
References to Armed Forces Special Powers Act and J&K Public Safety Act
There is an overwhelming reference to AFPSA, J&K Public Safety Act. Let me take on reference each to the above acts.
Para 42 of the report states that, "Impunity for human rights violations and lack of access to justice are key human rights challenges in the state. AFPSA and JK PSA have created structures that obstruct normal course of law, impede accountability and jeopardise the right to remedy for victims of human rights violation."
Prosecution sanctions not granted
On AFPSA the report quotes in para 53 that out of 50 cases of prosecution sanction it was not granted in 47 cases and in three a decision is yet to be taken. In this connection, at first let us get the legal framework right. Armed Forces, in the course of their action or in contingencies arising out of action in their bona fide duties are protected under Section 45 of CrPC against arrest, and Section 197 of CrPC for prosecution. AFSPA only reinforces these provisions and no draconian powers get vested with the security forces under these Acts. Further, I have dealt with grant of prosecution sanctions. The evidence received from the prosecuting agency is examined in detail including in consultation at several levels with legal experts. Hence to doubt an decision of grant of prosecution sanction is absolute malafide and devoid of any merit
Legal provisions apart, it is also important to examine the facts. Indeed it is a fact that some civilians have been killed in terms of exchange of fire between militants and security forces. They can however, not be called innocents. When a cross fire does occur the ground reality is that peace loving people do not bystand there to watch the outcome. Be assured, I have travelled extensively in Kashmir even in downtown area of Srinagar and can state this some sense of authority. Those bystanders are indeed helping the militants in some soft form or other. Hence calling them innocents is a travesty of truth.
Jammu and Kashmir Public Safety Act
About J&K Public Safety Act, it is said that this Act provides for arrest without any charges. The report also states that in para 59 that PSA has been used to stifle dissent. Let me again share a fact. There are many aliens who infiltrated into Jammu and Kashmir to carry out the agenda of ISI and were apprehended. After having served their sentences under Foreigners Act and other legislatures where the sentence is of short durations, when they are released and offered counsellor access, their home country does not acknowledge them as their citizens. It is a matter of fact which can be corroborated. Hence recourse is indeed taken under the J&K Public Safety Act for a custody of two years so that these persons are not indulging in disruptive activities. Hence, it would have been better if the author could have collected more complete data on the profile of these persons who have been detained under the J&K PSA to really appreciate, including the number of persons who had availed consular access before being arrested under J&K PSA.
Reference to J&K as India-administered territory
There has been repeated reference to Jammu & Kashmir as India-administered Kashmir. Let us get it right - that's what ISI calls Jammu and Kashmir.
Refusal to acknowledge J&K as integral part of India
Incidentally, the author has indicated in his reference material replies to Lok Sabha Unstarred Question No, 3203 answered on 16.3.2016 and Rajya Sabha Unstarred Question replied on 28.4.2016. But these reference have not been recalled or relied upon by the author. The reply to these questions are recalled for the readers:
(a) to (c) Pakistan has been attempting to raise the issue of Jammu and Kashmir at international fora, including at the United Nations, UN Human Rights Council and Organization of Islamic Countries. The entire State of Jammu and Kashmir is an integral part of the Indian Union. A part of the territory of the State is under illegal occupation of Pakistan. Vide the Simla Agreement, India and Pakistan committed to address all outstanding issues, including the issue of Jammu and Kashmir, peacefully through bilateral dialogue.
RS UQ No. 499
(a) to (c) Government is aware of reports regarding presence of 'leaders' of the Hurriyat and other Kashmiri separatist 'leaders' at the Pakistan High Commission on Pakistan's National Day.
Since the entire state of Jammu and Kashmir is an integral part of the Union of India and these so called Kashmiri 'leaders' are Indian citizens, there is no bar on their meetings with representatives of any country in India. However, India has consistently maintained that there is no role for a third party in the bilateral dialogue between India and Pakistan as per the Shimla Agreement and the Lahore Declaration. India's displeasure at Pakistan's attempts to interfere in India's internal affairs has been repeatedly conveyed to Pakistan.
Therefore it is evident that the author was reluctant to refer to J&K as an integral part of India, in spite of having accessed the documents placed in Parliament of India that reinforces the Government of India position to this effect.
Ignoring the fact of Pakistan's interference in J&K
Hence Pakistani establishments repeated interference in Indian affairs has been ignored by the author including the act of fostering separatism and secessionist movement from India by the High Commissioner of Pakistan personally has been ignored by the author.
Security to separatists
What is further more important is that in spite of such suo moto provocations, dilly dallying with Pakistani High Commission in Delhi, these separatist leaders are provided security at huge cost of money to the state exchequer running into hundreds of crores.
References to POK as AJK
The part of Kashmir under the administrative control (given the parameters of growth per se and w.r.t other Pakistani territories it should be called as mal-administrative control) of Pakistan is only the Kashmir part. Notwithstanding the fact that the Instrument of Accession in its title and text does refer to state of Jammu and Kashmir's accession to India, no part of Jammu was ever disputed or claimed by Pakistan. Ever since the beginning of the dispute, the Pakistani-administered territory was always referred to as Azad Kashmir. Even reference to UN OHR resolution on Kashmir dated 7th March, 1994 had referred to it as Indian Kashmir and Pakistani Kashmir. However, the ISI did change the nomenclature in first decade of 2000 to make it AJK meaning Azad Jammu and Kashmir. The reference has been as is where is taken by the author.
Misrepresenting number of civilians killed by terrorists
The number of civilians killed also includes the civilians killed in attacks by militants. Separate numbers are not indicated as how many were killed by security forces and how many in militant attacks. For example, Thirumani, who was killed by stone-pelters will also be included as a number in the civilians killed numbers.
No reference to attacks on security forces
Indeed there have been references by the author to Major Leetul Gogoi tying a stone-pelter (referred to as innocent civilian) and also Major Aditya's deeds in Kashmir to reinforce the narrative of human rights violations. However, what is missing from the report is the death of Lt Umar Fayaz, injury to CRPF Commandant Chetan Cheetah and any number of security personnel who were attacked by the so called innocents during their call of duty.
Summation of the report
Hence, it appears that the author has relied more on the ISI narrative, as is evident from the choice of his terminology, his narrative, his suppression of facts which would give a more balanced perspective etc. I would go to the extent of calling this a mischievous report.
What India should do
India should not just protest against such narratives peddled by an author allegedly compromised by ISI whatsoever be his nationality. It should move a motion for lifting of privileges and immunities available to United Nations personnel as well as the removal of the person from the rolls of United Nations service with further sanctions for debarring such mischievous elements from serving on the rolls of United Nations in whatever capacity.
(RVS Mani is a former Central government officer who shot to prominence as a whistleblower in 2009, when he alleged he had been forced to sign documents that fabricated a narrative of 'Saffron Terror'. His book, 'Hindu Terror: Insider account of Ministry of Home Affairs', was released recently.)
(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)